Madras High Court
The Divisional Manager vs B.Selvarani on 24 January, 2022
CMA(MD)No.539 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.01.2022
CORAM:
THE HONOURABLE MRS.JUSTICE S.ANANTHI
CMA(MD)No.539 of 2018 &
CMP(MD)No.6328 of 2018
The Divisional Manager,
The Royal Sundaram Alliance Insurance Co. Ltd.,
Bus Plaza, 3rd Floor,
No.5G-Lawsons Road,
Cantonment, Trichy 620 001. ... Appellant
vs.
1.B.Selvarani
2.Minor Ramaya
(Minor 2nd respondent represented by her mother
first respondent herein)
3.S.Baskar
4.C.Thiyagarajan ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 to set aside the fair and decreetal order dated
02.06.2016 in MCOP.No.1034/2012 on the file of the Motor Accidents
Claims Tribunal, Special District Court, Thanjavur.
For Appellant : Mr.S.Srinivasa Raghavan
For Respondents : Mr.K.K.Senthil for R1 and R2
No appearance for R3 and R4
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CMA(MD)No.539 of 2018
JUDGMENT
The appellant filed this appeal against the Judgment and Decree
dated 02.06.2016 in MCOP.No.1034/2012 on the file of the Motor
Accidents Claims Tribunal, Special District Court, Thanjavur.
2. On 09.09.2011, the deceased Karthikeyan was riding a
motorcycle bearing Registration No.TN 49 AJ 7336 with his friend Balaji
as pillion rider along Trichy - Thanjavur main road. At about 02.30 pm, a
lorry bearing Registration No.TN 46 E 0672 driven by its driver in a rash
and negligent manner was stopped by its driver by applying sudden
brake, as a result of which, the motorcycle hit the lorry and both
Karthikeyan and Balaji were thrown away from the motorcycle.
Karthikeyan sustained severe injuries and died in the Hospital.
3. The claimants, who are the mother and sister of the deceased
Karthikeyan filed MCOP.No.1034/2012 claiming compensation for the
demise of Karthikeyan. The father of the deceased Karthikeyan was
arrayed as first respondent in the claim petition. The Tribunal after
analysing the oral and documentary evidences on record, came to a
conclusion that the lorry driver and the deceased Karthikeyan were
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CMA(MD)No.539 of 2018
equally responsible for the accident and fixed contributory negligence on
the deceased Karthikeyan at 50%. The Tribunal calculated the total
award at Rs.17,75,000/- and after deducting 50% towards contributory
negligence of the deceased, awarded a sum of Rs.8,87,500/- together
with interest at the rate of 9% per annum, as compensation. The Tribunal
directed the appellant herein to pay the compensation to the mother,
sister and father of the deceased (arrayed as claimants and first
respondent before the Tribunal). Challenging the said order, the
appellant has preferred this appeal.
4. The learned counsel for the appellant would submit that the
deceased Karthikeyan had ridden the motorcycle in a rash and negligent
manner and dashed against the stationary lorry parked on the service
road. Hence, the deceased Karthikeyan was solely responsible for the
accident and 100% negligence ought to be fixed on his part. The
monthly notional income fixed by the Tribunal at Rs.10,000/- is very
high. Further the Tribunal added 50% towards the future prospects of the
deceased which is unsustainable.
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CMA(MD)No.539 of 2018
5. The learned counsel for the respondents 1 and 2 submitted that
100% negligence should be fixed on the part of the driver of the lorry
since he applied sudden brake, owing to which, the motorcycle ridden by
the deceased Karthikeyan hit the lorry. He further submitted that the
Tribunal after taking into consideration all the materials on record,
awarded just compensation and the same need not be disturbed.
6. Heard both sides and perused the materials available on record.
7. A perusal of the orders passed by the Tribunal shows that the
Tribunal after detailed consideration of the facts and circumstances and
also relevant Judgments, had come to a conclusion that the driver of the
lorry and the deceased Karthikeyan were equally responsible for the
accident. This Court also, after perusing the oral and documentary
evidences, concurs with the decision of the Tribunal, insofar as fixing the
liability aspect is concerned. As far as quantum of compensation is
concerned, the deceased Karthikeyan was aged 21 years and was
studying MCA II year on the date of the accident. The accident took
place in the year 2011. Hence, the Tribunal was justified in fixing the
monthly notional income as Rs.10,000/-. However, as per the decision of
the Hon'ble Supreme Court in National Insurance Co. vs Pranay sethi and
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CMA(MD)No.539 of 2018
others reported in 2017 (2) TNMAC 601, only 40% should be added
towards the future prospects of the deceased. Therefore, Rs.10,000/- +
Rs.4,000/- (40% of Rs.10,000/-) = Rs.14,000/-. The deceased was a
bachelor on the date of the accident and hence, 50% should be deducted
towards his personal expenses. Hence, it would amount to Rs.14,000/- x
1/2 deduction = Rs.7,000/-. The multiplier 18 adopted by the Tribunal is
hereby confirmed. Therefore, loss of dependency would come to Rs.
7,000/- x 12 x 18 = Rs.15,12,000/-. The Tribunal had awarded Rs.
50,000/- each to the father and mother and Rs.10,000/- to the sister as
compensation towards loss of love and affection. This Court is of the
considered opinion that awarding Rs.40,000/- each to the father, mother
and sister of the deceased towards loss of love and affection would be
just and reasonable. Further the rate of interest fixed by the Tribunal at
9% per annum is on the higher side. This Court is inclined to reduce the
same to 7.5% per annum. All the other heads awarded by the Tribunal
are just and reasonable and hence they are hereby confirmed. The award
passed by this Court under various heads is extracted hereunder:
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CMA(MD)No.539 of 2018
S.No. Head Amount granted
by this court
1. Loss of dependency Rs.15,12,000/-
2. Loss of love and affection to the Rs.1,20,000/-
respondents 1 to 3
3. Funeral Expenses Rs.25,000/-
4. Loss of Estate Rs.10,000/-
5. Transport Expenses Rs.10,000/-
Total Rs.16,77,000/-
Contributory Negligence on the part of Rs.8,38,500/-
the deceased Karthikeyan (50%)
Total compensation for respondents 1 to Rs.8,38,500/-
8. The learned counsel for the appellant would submit that the
appellant/Insurance Company has already deposited the entire
compensation amount to the credit of MCOP.No.1034/2012 on the file of
the Motor Accidents Claims Tribunal, Special District Court, Thanjavur.
9. In the result,
(i) The Civil Miscellaneous Appeal is partly allowed. No costs.
Consequently, the connected Miscellaneous Petition is closed.
(ii) The quantum of compensation awarded by the Tribunal is
reduced from Rs.8,87,500/- to Rs.8,38,500/- together with interest at the
rate of 7.5% per annum.
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CMA(MD)No.539 of 2018
(iii) The respondents 1 and 3 are entitled for 40% compensation
each. The second respondent is entitled for 20% compensation. Since
the amount has already been deposited by the appellant/Insurance
Company, the respondents 1 and 3 herein are at liberty to withdraw the
same along with proportionate interest and costs after following due
process of law. The share of the minor second respondent shall be
deposited in any one of the nationalized Banks, till she attains majority.
The first respondent / mother and guardian of the minor second
respondent is permitted to withdraw the interest from the above said
deposit, once in three months directly from the Bank and utilize the same
for the welfare of the child.
(iv) The appellant/Insurance Company is at liberty to withdraw the
amount that is in excess of the amount awarded by this Court together
with proportionate interests and costs after following due process of law.
24.01.2022
Index : Yes/No
Internet : Yes/No
mbi
https://www.mhc.tn.gov.in/judis
CMA(MD)No.539 of 2018
S.ANANTHI, J.
mbi
To
The Motor Accident Claims Tribunal,
Special District Court,
Thanjavur.
CMA(MD)No.539 of 2018
24.01.2022
https://www.mhc.tn.gov.in/judis
